A useful discussion last night on how IFSO might respond to the consultation on copyright. Some points which could be included are below. Things to do are:
Resolve ref about previous Irish Copyright act and fair-use rights. I'll try to do this.
Find examples of DMCA abuse in the USA.
Put together into letter.
Fair use rights would be great, but must make sure that DRM doesn't undermine them or make them void.
My draft said 'legally-acquired content'; could add 'and devices'.
Interoperability rights should be preserved.
Previous Irish legislation [check ref] explicitly had some clause along the lines of 'fair-use rights [or whatever they were called at the time] cannot be contracted away'. This shows some history in Ireland of recognising their importance and is something we could ask to be re-introduced.
Find some examples of DMCA 'unintended consequences', especially those where a company has tried to prevent a competitor making a compatible product. Garage door openers, printer cartridges. Even if some of these cases eventually were resolved in favour of the new product, the threat of such cases dissuades innovation.
Dublin Bikes iPhone app, which was blocked. (Unclear on what grounds, but might have been database rights.) Do other outfits like this seek to prevent use of data by copyright law? (E.g., terms of use of a website, perhaps based on copyright, preclude what you can do with data on the site?) Price comparison websites?
Software should be an area where barriers to entry are very low, and so also low start-up costs for innovation, but legal threats act against this.
Data produced with public money should be publicly available. E.g., Ordnance Survey data; finding gold in Fermanagh from geological survey data.
Previous Irish legislation [check ref] explicitly had some clause along the lines of 'fair-use rights [or whatever they were called at the time] cannot be contracted away'. This shows some history in Ireland of recognising their importance and is something we could ask to be re-introduced. [... re-order ...] Resolve ref about previous Irish Copyright act and fair-use rights. I'll try to do this.
My aging memory hadn't got this quite right, sorry. The bit I was thinking of was section 374 of the Copyright and Related Rights Act, 2000:
(Non-interference of rights protection measures with permitted acts.)
374. Nothing in this Chapter shall be construed as operating to prevent any person from undertaking the acts permitted---
(a) in relation to works protected by copyright under Chapter 6 of Part II,
(b) in relation to performances, by Chapter 4 of Part III, or
(c) in relation to databases, by Chapter 8 of Part V,
or from undertaking any act of circumvention required to effect such permitted acts.
[http://www.irishstatutebook.ie/2000/en/act/pub/0028/sec0374.html]
where (a)--(c) refer to various fair dealing provisions. However, that section was amended by section 5 of SI no.16/2004:
5. The Act of 2000 is amended by substituting for section 374 the following:
Non-interference of Rights Protection Measures with Permited Acts
(1) Nothing in this Chapter shall be construed as operating to prevent any person from undertaking the acts permitted ---
(a) in relation to works protected by copyright under Chapter 6 of Part II,
(b) in relation to performances, by Chapter 4 of Part III, or
(c) in relation to databases, by Chapter 8 of Part V.
(2) Where the beneficiary is legally entitled to access the protected work or subject-matter concerned, the rightsholder shall make available to the beneficiary the means of benefitting from the permitted act, save where such work or other subject-matter has been made available to the public on agreed contractual terms in such a way that members of the public may access the work or other subject-matter from a place and at a time individually chosen by them.
(3) In the event of a dispute arising, the beneficiary may apply to the High Court for an order requiring a person to do or to refrain from doing anything the doing or refraining from doing of which is necessary to ensure compliance by that person with the provisions of this section.
[http://www.irishstatutebook.ie/2004/en/si/0016.html]
which muddies the water a bit --- what exactly does 'save where such work or other subject-matter has been made available to the public on agreed contractual terms in such a way that members of the public may access the work or other subject-matter from a place and at a time individually chosen by them' mean? I guess it might be talking about movies-on-demand or something, but IA-certainly-NAL. This came up previously in Ireland's implementation of EU directive 2001/29/EC.
Anyway, the point (mostly) remains that the Irish legislature has historically been sympathetic to the idea that "fair dealing" overrules "no circumventing rights protection measures".
(Incidentally, I found the SI via
http://www.irishstatutebook.ie/isbc/2000.html#a28_2000
which seems to be a sort of list of currently-active diffs against Irish acts --- quite cool that this information exists.)
Evening all,
Could I have some feedback on the below, at this stage at the level of overall points and structure? (Rather than 'I think "essential" is better than "vital"' etc.)
Thanks,
Ben.
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A research report by the EFF,
Unintended Consequences: Twelve Years under the DMCA http://www.eff.org/wp/unintended-consequences-under-dmca
documents a good range of abuses in the US of the analogous legislation. I've taken an example or two from it below. I'm undecided as to whether we should include a copy with our submission.
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Letter:
What are our points? I think:
Fair use: put back the 'fair use trumps DRM' principle. Free SW is 'right to create own tools to use legitimately-purchased material in our own 'fair dealing' ways'.
Innovation: cite some examples of abuse of the DMCA to hinder innovation, ideally keeping a Free Software angle. What do we want? A general 'interoperability / competition' right?
Research: chill on publishing discussion security vulnerabilities.
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The headings in [] are for our own use in thinking about the draft, although could possibly be left in.
Stuff in {{}} needs filling in or deciding about. Wording needs tweaking throughout.
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Dear NNN,
We would like to respond to the minister's invitation for submissions regarding a review of copyright and related rights.
[Who are IFSO? What is Free Software?]
The Irish Free Software Organisation represents the interests of Free Software in Ireland --- the 'Free' refers to freedom rather than price. Free Software confers on its users the right to run, study, change and distribute it. A great deal of innovation and technological progress has been made possible by Free Software, such as {{ABC, XYZ; Android phones?}} Vital for Ireland's reputation as an innovative economy is the freedom to rapidly innovate, building on earlier work. Also {{esp. 'young'?}} people need to be able to study and learn from existing software to best become good at writing their own. Free Software should play a central role in this process.
[Seize chance to prevent abuses of 'anti-circumvention'; restore balance with public's rights.]
IFSO acknowledges the need to prevent commercial-scale copyright infringement. At the same time, the public's rights must also be protected. We consider that the 'anti-circumvention' bits in the current law strike the wrong balance, and urge the minister to reform the law in the following ways.
[We can learn from the US experience with its DMCA; EFF report.]
In many ways our European and Irish legislation is similar to the Digital Millennium Copyright Act in the USA. We can therefore take some lessons from the USA's experience, where the anti-circumvention bits have been abused to the detriment of the public, and also innovation and competition.
[Fair use is good; ensure not neutered by DRM.]
We welcome the minister's reference to a US-style 'fair use' doctrine. We urge him to learn from the unintended consequences of their DCMA legislation. Purchasers of, for example, DVDs have fair use rights, but cannot exercise them because of the encryption on DVDs. Creators of tools for unlocking DVDs, restoring consumers' ability to exercise their fair-use rights, have been sued, and products withdrawn. The public suffers. We urge the minister to reinstate the principle of s.374 of the Copyright and Related Rights Act, 2000, which ensured that 'permitted acts' overruled 'rights protection measures'.
{{Want to write our own software to make fair use of material we've legitimately purchased.}}
[Innovation is harmed by (even threat of) DMCA-style suits.]
Increasingly, computer software plays a role in products. In the US, this has opened the door to abuses of the DMCA, with the result that beneficial innovation and competition is hindered.
For example, the printer manufacturer Lexmark, aiming to maintain its monopoly position in the lucrative market for refills, sued under the DMCA to prevent distribution of a component which would have enabled other manufacturers to create compatible refills.
Although many of these cases were ultimately resolved in favour of the innovator, the fear that a potential innovator might be drawn into a very costly legal battle has a chilling effect on innovation.
{{We urge the minister to ensure that innovation, in the offering of products which have legitimate uses, is not threatened. Any concrete suggestion we can make?}}
[Academic research is harmed by (even threat of) DMCA-style suits.]
Especially in the area of computer security, high-quality academic research has often been suppressed because it exposes flaws in somebody's product. It is generally accepted that computer security, vital in this age where more and more business is conducted online, is advanced by full and open discussions. Manufacturers have historically been very poor at fixing flaws, thereby leaving their customers vulnerable, until the flaws are made public. We urge the adoption of the principle that the carrying out, publication and discussion of research is permitted, even when it is inconvenient for particular manufacturers.
[People should 'own' their devices.]
Another area where DRM-style restrictions impede innovation is in software for appliances / devices. Members of the public should have the right to write and run their own software on devices they own, but this is often legally risky under the current framework. {{Is the recent Sony case a good or bad example? Don't want to be seen as encouraging 'piracy'.}}
Use this opportunity to bring clarity to the right to reverse engineer in order to build compatible devices / software. Closed systems hamper innovation and competition. True when the 'closedness' is technical, but even more so when there are legal threats.
Thank you for your consideration of this submission.
IFSO.